IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 149/09 DATED 18.08.2009<br /> ORDER<br /> <br /> Complainant M.S. Hemalatha W/o late C.R. Dwarakanath, R/at No.297, 2nd cross, 2nd Main, Behind Ganapathy Temple, K.D. Circle, Vijayanagar, 2nd stage, Mysore.<br /> <br /> (By Sri S. Umesh, Advocate)<br /> <br /> Vs. <br /> Opposite Party The President, The southern Railway Employees Co-operative House Building Society Ltd., Mysore (North), Railway Offices, Irwin Road, Mysore-570001.<br /> <br /> (By Sri. K.R. Shivashankar. Advcoate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.04.2009<br /> Date of appearance of O.P. : 21.05.2009<br /> Date of order : 18.08.2009<br /> Duration of Proceeding : 2 MONTH 27 days <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint seeking the direction to the opposite party to execute the sale deed in respect of the site allotted to her husband.<br /> <br /> 2. In the complaint it is stated that, husband of the complainant by name late C.R. Dwarakanath was one of the members of the opposite party. The opposite party had alloted a site No. 352 measuring 18 meters East to West, 12.0+12.5/2 meters North to South situated Sharadha Nagar, Railway layout, Bogadi, Mysore and allotment letter was given by the opposite party. There after possession of the site also was given by the opposite party to the husband of the complainant on 13.07.1998. On 03.05.2002 husband of the complainant died leaving behind him his wife, the complainant and children Shilpa and Swetha. After the death of the husband recently complainant came to know the allotment of the site. She approached the opposite party and requested to execute the sale deed. The opposite party has not responded to the request of the complainant. Complainant approached the opposite party personally but it declined to do so. Therefore deficiency of service on the part of the opposite party. Legal notice dated 31.12.2009 was sent by the complainant to the opposite party and the opposite party though sent evading reply, not complied with the request. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version admitted that, husband of the complainant was member of it and was alleged a site. As regards date of his death it is stated that is not known. It is contended that, the death was not reported to opposite party and the legal heirs not sought for transfer of the site nor paid the amount. The complaint is filed beyond two years from 2002. It is liable to be dismissed as barred by time. It is contended that, in the month of February 2009 the complainant approached the opposite party, is invented to create cause of action. For a period of 7 years the complainant kept quite. There is no deficiency in service on the part of the opposite party. Also there is no cause of action.<br /> <br /> 4. Further it is contended that, husband of the complainant was communicated by means of several letters demanding payment of installments. Taking into consideration of part payment made, sit was allotted. There after also reminders were sent. Husband of the complainant did not pay the amount, in respect of repeated demands to pay the balance amount of Rs.14,130/-, there is no response. Final letter on 20.05.2006 was sent mentioning that, if the payment is not made within the date mentioned therein, the allotment will be cancelled and the same will be allotted to other members. It is returned un-served, as absent. Husband of the complainant failed to pay the balance amount of the site and as such, allotment has been cancelled and it has been allotted to other members who are in the seniority. It is contended that, change of address was not communicated to the opposite party. On these grounds it is prayed to dismiss the complaint.<br /> <br /> 5. The complainant has filed her affidavit and produced the documents shown in the list. On the other hand one Sri T.M. Dharmegowda, president of the opposite party has filed his affidavit and certain documents mentioned in the list are produced. We have heard the arguments of the learned advocates for the complainant as well as the opposite party. Also we have perused the material on recard.<br /> <br /> 6. Now, the points for our consideration are as under.<br /> 1. Whether the complainant has proved that, there is deficiency in service on the part of the opposite party and that she is entitled for the direction sought ?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The fact that, husband of the complainant was member of the opposite party society and a site was allotted to him, is not dispute. The complainant further claims even possession of the site was handed over. In this regard complainant has produced copy of possession certificate dated 13.07.1998. This fact is also not disputed by the opposite party. <br /> <br /> 9. The main contention of the opposite party is that, since the husband of the complainant did not pay the entire cost of the site or installments, the allotment of the site came to be cancelled. In this regard, at the out set the complainant contend that, in fact entire site cost has been paid and secondly, the opposite party under the circumstances, has no power at all to cancel the allotment.<br /> <br /> 10. As regards the contention of the opposite party that, entire site cost was not paid or installments were not paid, it is relevant to refer the statement made by the complainant in her affidavit. She has given the dates and the particulars of the amount paid to the opposite party. In all 88,560/- has been paid. Firstly said payment claimed by the complainant has not been denied or disputed by the opposite party and secondly, in support of the said statement, the complainant has produced Xerox copy of the receipts issued by the opposite party. Hence one fact is clear that, as claimed by the complainant, payment has been made.<br /> <br /> 11. Now to consider the contention of the opposite party that, in spite of several letters or reminders payment has not been made, for the opposite party number of Xerox copies of the letters said to have been sent to the husband of the complainant, are produced. I feel it not necessary to minutely refer each one of them. It is justice to note that, in fact as per the said letters, husband of the complainant has made payment to the opposite party from time to time. At serial No.10 last letter or reminder was sent by the opposite party to the complainant stating that, a sum of Rs.7,860/- should be paid within the date mentioned therein failing which allotment will be cancelled. The complainant in her chief examination in the affidavit specifically stated, a sum of Rs.5,000/- paid on 09.06.1998 and a sum of Rs.2,860/- on 13.07.1998. Thus the amount demanded by the opposite party by the said letter to the extent of Rs.7,860/- has in fact been paid within the date fixed by the opposite party. Hence, it is clear that within the date stipulated, the entire amount as demanded by the opposite party has been paid by the husband of the complainant. When that is so, the contention of the opposite party that, entire site cost or installments have not been paid, cannot be believed.<br /> <br /> 12. The allotment letter given by the opposite party to the husband of the complainant is produced by the complainant as serial No.1. The second condition is that, possession certificate should be issued only after entire site cost is paid. As mentioned here before the complainant has produced possession certificate issued by the opposite party which is dated 13.07.1998. On that date, husband of the complainant has paid the balance amount of Rs.2,860/-. Thus considering the condition imposed in the allotment letter and other facts, it is clear that, possession certificate was issued by the opposite party to the husband of the complainant because entire cost of the site was paid. <br /> <br /> 13. The learned advocate for the opposite party pointed out that, there after the opposite party demanded the husband of the complainant or complainant to pay the amount from time to time for which letters or reminders were sent. It is true, copy of such letters are placed on record. In this regard firstly for sending all those letters, there is no evidence except one document. During the course of the arguments, learned advocate vehemently argued that, because the complainant or the husband did not get sale deed executed, the opposite party had to incur expenses such as tax to MUDA, towards electricity as well as maintenance etc., To substantiate the same firstly there is no cogent evidence and secondly, even if really the opposite party sustained such expense, it is not the cost of site. When it is not the cost of the site, the opposite party cannot cancel the allotment of the site. If the opposite party had incurred any expenses as contended and that the complainant or her husband are liable, the opposite party has to recover the same in accordance with law, but cannot cancel the allotment. More over there is no consistency in the demand made by the opposite party in this regard. In the relevant letters a sum of Rs.12,126/- was demanded. Thereafter 14,130/- and then in the reply notice a sum of Rs.20,130/-. Irrespective of it, as noted above this demand is not towards the cost of the site but towards other expenses.<br /> <br /> 14. It is the contention of the complainant that, the opposite party had no power at all the cancel the allotment. For the opposite party copy of the resolution, as well as the resolution book are produced. A meeting was held on 30.09.2007. On page 25 of the book the proceedings are commenced. The learned counsel for the complainant pointed out page No.32. He submitted that, at the end of first paragraph there is insertion regarding cancellation. The learned counsel pointed out all the pages in respect of the proceedings of said date and pointed out that, after each agenda and writing of the proceedings a line or sentence is left, where as on page 32, there is no blank sentence and in fact earlier a sentence was left blank but utilizing that blank sentence, addition has been made and thereby said resolution so for concerned to cancellation is fabricated. On keen observation, the submission appears to be true. Firstly, in the earlier pages as well as in the subsequent pages in between the each agenda and the writings, a line is left blank, where as only on page 32 there is no blank line. Secondly, we can find little difference in the ink of the said insertion and the remaining writings on the said page. Likewise, in between the letters or words comparing to other writings in the said page, one can find difference that, in the added or inserted portion, in between the letters or words, as usual there is no spacing. Considering this, we are of the opinion that, said sentence has been inserted or added subsequently.<br /> <br /> 15. There is one more resolution book and that was also produced by the opposite party but latter keeping Xerox copy that has been taken back. Advocate for the complainant in respect of this resolution book also submitted that, few sheets in the book have been added or replaced. The relevant resolution is dated 10.11.2008. On page 136 disputed fact is pointed out. At serial No.7 there was some writing that, all members had paid entire cost of the site and had obtained possession etc., But that is scored and below it, seventh agenda or paragraph is again written. Here, it is mentioned that, the members name mentioned therein have not paid the amount and hence, allotment has been cancelled and the same should be allotted to other eligible members. Reading the said agenda or resolution, as written already there was cancellation of the allotment. Past tense is used. So also specifically it is mentioned, the sites in respect of which allotment has been cancelled, are to be distributed to eligible members. That was the agenda in the meeting. Thus as mentioned therein allotment was cancelled. Hence the question would arise when actually the allotment was cancelled, in the letter produced by the opposite party at serial No.31 dated 20.05.2006, it is stated as already informed allotment will be cancelled and the site would be given to eligible member if the amount shown therein is not paid. In the resolution dated 30.09.2007 on page 32 the inserted portion is to be held that, the members informed the meeting to cancel the allotment who have not got registered and that was agreed. <br /> <br /> 16. As regards sending of the letter by the opposite party at serial No.31, it is contended that through RPAD, it was sent but returned with an endorsement “absent during delivery time”. Thus the opposite party contended that, the complainant or her husband did not inform the opposite party regarding change of address. Irrespective of this, first of all in fact the husband of the complainant had made all payment in respect of cost of the site and secondly, the subsequent demand is towards tax or maintenance etc., On that ground allotment cannot be cancelled. Further more prima-facie insertion or addition in the resolution has been established. More over it is stated by the opposite party that, the present complainant who is wife of the deceased allottee is serving in the bank. When it is within the knowledge of the opposite party that, complainant was serving in the bank, the opposite party in the normal course could have sent notice to that address also. More over all along the complainant has claimed that she approached the opposite party requesting to execute the sale deed or transfer the site in her name.<br /> <br /> 17. The main contention of the opposite party is that, the complaint is hopelessly bard by limitation. Counsel for the opposite party pointed out that, in the complaint it is alleged that, cause of auction arosed on 13.07.1998 the date of handing over possession and during 20.02.2009 etc., Thus he submits cause of auction as alleged arose in the year 1998 and hence, the complainant filed during the year 2009, is time barred. Even though in the complaint it is alleged that, cause of auction arose on 13.07.1998, that is not the only aspect to be looked into. Cause of auction is a bundle of facts. 30.7.1998 is the date of handing over possession of the site. Thereafter only the opposite party was to execute the sale deed. It is narrated by the complainant that, her husband died in the year 2002 and she was not aware of the allotment of the site and after coming to know of the allotment and when she found the possession certificate, she approached the opposite party for sale deed but it did not comply etc., Hence under these circumstances, the contention of the opposite party that the complaint is time barred, cannot appreciated. More over as noted here before in fact entire site cost has been paid and hence it is bounden duty of the opposite party to execute the sale deed.<br /> <br /> 18. Considering the facts and the discussions made here before, we are of the opinion that, the complainant has proved deficiency of service on the part of the opposite party in not executing the registered sale deed as per the allotment letter. However, incidentally we would like to observe that, the complainant is liable to pay the other charges claimed by the opposite party which has been mentioned in the reply amounting to Rs.20,130/-. Accordingly, we answer the point No.1 in affirmative.<br /> <br /> 19. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opposite party is hereby directed to executed the registered sale deed in favour of the complainant in respect of site No.352 measuring 40 X 60 feet situated at Sharadhanagar, Railway layout, Bogadhi, Mysore, in accordance with law, within 60 days from the date of this order.<br /> 3. The complainant shall pay sum of Rs.20,130/- to the opposite party within the month from the date of this order. <br /> 4. There is no order as to cost.<br /> 5. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 18th August 2009)<br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Shivakumar .J)<br /> Member<br /> <br />